440. This is one of the reforms effected by the Torrens system of real property law in force in the Australasian colonies. The so-called mortgages of land under that system are in reality merely liens.

441. Applications of the rule of possessory ownership may be seen in the cases of Armory v. Delamirie, 1 Str. 504; 1 Smith, L. C. 343; Asher v. Whitlock, L. R. 1 Q. B. 1; and Perry v. Clissold, (1907) A. C. 73.

442. The term prescription (praescriptio) has its origin in Roman law. It meant originally a particular part of the formula or written pleadings in a law suit—that portion, namely, which was written first (praescriptum) by way of a preliminary objection on the part of the defendant. Praescriptio fori, for example, meant a preliminary plea to the jurisdiction of the court. So praescriptio longi temporis was a plea that the claim of the plaintiff was barred by lapse of time. Hence, by way of abbreviation and metonymy (other forms of prescription being forgotten) prescription in the modern sense.

443. It is clear, however, that until a debt or other obligation is actually due and enforceable, no presumption against its validity can arise through the lapse of time. Therefore prescription runs, not from the day on which the obligation first arises, but from that on which it first becomes enforceable. Agere non valenti non currit praescriptio.

444. C. 2. 3. 20.

445. Stat. 8 & 9 Vict. c. 106, s. 2.

446. Cochrane v. Moore, 25 Q. B. D. 57.

447. D. 50. 17. 54.

448. The Factors Act, 1889.

449. Continental systems carry much further than our own the doctrine that the possessor of a chattel may confer a good title to it. Article 2279 of the French Civil Code lays down the general principle that En fait de meubles la possession vaut titre. In other words the ownership of a chattel involves no droit de suite or jus sequelae, no right of following the thing into the hands of third persons who have obtained it in good faith. The rule, however, is subject to important exceptions, for it does not apply either to chattels stolen or to chattels lost. Speaking generally, therefore, it is applicable only where an owner has voluntarily entrusted the possession of the thing to some one else, as a pledgee, borrower, depositee, or agent, who has wrongfully disposed of it to some third person. Baudry-Lacantinerie, De la Prescription, ch. 20. See also, for very similar law, the German Civil Code, sects. 932–935, and the Italian Civil Code, sects. 707–708.

450. Hereditas ... personam ... defuncti sustinet. D. 41. 1. 34. See Holmes, Common Law, pp. 341–353. Maine, Ancient Law, pp. 181–182.

451. Brown v. Burdett, 21 Ch. D. 667.

452. Obligatio est juris vinculum, quo necessitate adstringimur alicuius solvendae rei, secundum nostrae civitatis jura. Inst. 3. 13. pr.

453. Jacob’s Law Dictionary, cited by Mr. Sweet in L.Q.R. X. at p. 308 n.

454. As to the nature of choses in action, see Blackstone, II. 396; Colonial Bank v. Whinney, 30 Ch. D. 261 and 11 A. C. 426; and a series of articles by different writers in the L.Q.R.: IX. 311, by Sir Howard Elphinstone; X. 143. by T. C. Williams; X. 303. by C. Sweet; XI. 64. by S. Brodhurst; XI. 223, by T. C. Williams; XI. 238. by C. Sweet.

455. As we shall see, the creditor is not always entitled to sue one alone of the debtors; but when he has obtained judgment against all, he can always, by way of execution, obtain payment of the whole from any one.

456. Ward v. The National Bank, 8 A. C. 755.

457. (1899) 1 Q. B. 840.

458. At p. 845.

459. For another illustration, see Sadler v. Great Western Ry. Coy., (1896) A. C. 450.

460. Morris v. Robinson, 3 B. & C. 196; 27 R. R. 322.

461. Supra, § 123.

462. It is advisable to point out that the obligation to pay damages for a breach of contract is itself to be classed as contractual, no less than the original obligation to perform the contract.

463. A similar relation exists between breaches of contract and crimes. Breach of contract is not in itself a crime, any more than it is in itself a tort; yet by undertaking a contractual duty, a man may often put himself in such a position, that he cannot break the duty without causing such damage to third persons, as will create criminal liability. For example, a signalman’s breach of his contractual duty to attend to the signals may amount to the crime of manslaughter if a fatal accident results from it.

464. Salmond’s Law of Torts, p. 5.

465. Grant v. Easton, 13 Q. B. D. 302.

466. Commentaries II. 443.

467. Ibid. III. 159.

468. Ibid. III. 162.

469. Commentaries III. 160. “A cause of action of contract arises not merely where one party has broken a legally binding agreement with the other, but where two parties stand in such a mutual relation that a sum of money is legally due from the one to the other, in which case the law is said to imply a contract to pay the money.” Clerk and Lindsell, Law of Torts, p. 1.

470. Grant v. Easton, 13 Q.B.D. at p. 303.

471. Moses v. Macferlan, 2 Burr. 1005 at p. 1009.

472. Exall v. Partridge, 8 T. R. 308; 4 R. R. 656.

473. Smith v. Baker, L.R. 8 C. P. 350. See further as to the waiver of torts, Lightly v. Clouston, 9 R.R. 713; 1 Taunt. 112; Phillips v. Homfray, 24 Ch. D. at p. 461; Salmond, Law of Torts, § 44.

474. County Courts Act, 1888, s. 116. This classification of actions is discussed by Maitland in an appendix to Sir F. Pollock’s Law of Torts.

475. Contracts which have no specific name are called by the civilians contractus innomnati.

476. A conclusive presumption is sometimes called a presumptio juris et de jure, while a rebuttable presumption is distinguished as a presumptio juris. I am not aware of the origin or ground of this nomenclature. The so-called presumptio facti is not a legal presumption at all, but a mere provisional inference drawn by the court in the exercise of its unfettered judgment from the evidence before it.

477. See Bentham, Works, VII. pp. 445–463, and Dumont, Treatise on Judicial Evidence, Book VII. ch. 11: “If all the criminals of every class had assembled, and framed a system after their own wishes, is not this rule the very first which they would have established for their security?... One could be tempted to believe that those notions had been taken from the laws of honour which regulate private combats.”

478. Leviathan, ch. 14. Eng. Works III. p. 129.

479. On the history of oaths, see Lea, Superstition and Force, Part I. ch. 2–8; Encyclopædia Britannica, sub voc. Oath; Hirzel, Der Eid (1902). As to their utility, see Bentham’s Works, VI. 308–325.

480. Vide supra, § 10.

481. Supra, § 5.

482. Thorpe, Ancient Laws and Institutes of England, i. 159; Laws of King Edward, pr.

483. Ibid. i. 171; Laws of Edward and Guthrum, 6.

484. Ibid. i. 181; Oaths, 3.

485. See e.g. Mirror of Justices (Selden Society’s Publications, vol. vii.), passim.

486. D. 1. 1. 11.

487. Jus is also used in various other derivative senses of less importance: e.g., a law court (in jus vocare), legal or rightful power or authority (sui juris esse: jus et imperium), legal decision, judgment (jura dicere). See Nettleship, Contributions to Latin Lexicography, sub voc. Jus.

488. See Clark, Practical Jurisprudence, p. 18. We owe to Professor Clark a very careful and scholarly investigation of the whole subject-matter of this inquiry. See also Skeat’s Etymological English Dictionary, sub voc. just; Manuel des Antiquités Romaines, vol. 6, part i. p. 352, note 4: Miller’s Data of Jurisprudence, p. 33.

489. Nettleship, Contributions to Latin Lexicography, sub voc. Mos.

490. Practical Jurisprudence, p. 51.

491. Dike is said to be derived from DIK, to show, point out, make known, this being itself a form of DA, to know; hence, practical knowledge, skill, the way a thing is done, custom. This suggestion might be considered ingenious, rather than convincing, were it not for the singular fact that the Teutonic languages exhibit a precisely similar process of thought. The English substantive wise means way or manner, and is yet the same word as wise, the adjective, and is derived from the root WID, to know. See also with the German Weise (way), weisen(to point out, direct), weise (wise). See Curtius, Grundzüge der Griechischen Etymologie, sub voc. dike. Skeat, sub voc. Wise, and list of Aryan Roots, 145 and 372.

492. Skeat, Aryan Roots, 162.

493. On the whole matter see Maine, Ancient Law, ch. 1; Clark, Practical Jurisprudence, p. 42; Liddell and Scott, sub voc. themis; Hirzel, Themis Dike und Verwandtes (1907).

494. Manuel des Antiquités Romaines, vol. 6, part i. p. 351; Nettleship, sub voc. Lex.

495. Cited by Nettleship, sub voc. Lex.

496. Just. Inst. i. 2. 4.

497. See Ducange, sub voc. Lex.

498. See Ducange, sub voc. Lex.

499. Ibid.

500. Ibid.

501. See Murray’s New English Dictionary, sub voc. Doom.

502. Thorpe, Ancient Laws and Institutes of England, vol. i. p. 55; Laws of King Alfred, sect. 49.

503. Ibid. sect. 43.

504. Ibid. vol. i. p. 273; Laws of King Edgar, Supplement, sect. 2. In Scottish legal procedure the word doom is still used in the sense of judgment; the death sentence is “pronounced for doom”: Miller’s Data of Jurisprudence, p. 292.

505. Manuel des Antiquités Romaines, vol. 6, pt. i., p. 351, n.

506. See Smith’s Latin Dictionary, sub voc. lego.

507. Nettleship, sub voc. Lex.

508. Clark, p. 31.

509. Muirhead, Historical Introduction to the Private Law of Rome, p. 19.

510. Skeat, sub voc. Law; Clark, p. 68.

511. Much information as to the etymology and early meanings of legal terms is to be found in Miller’s Data of Jurisprudence, passim. See also Walker’s Science of International Law, pp. 21–25.

512. Supra, § 41.

513. As to the severance of legislative and executive sovereignty in the British constitution, see Anson, Law and Custom of the Constitution, Part I. pp. 39–41, 3rd ed.

514. As to the divisibility of sovereign power, see Bryce’s Studies in History and Jurisprudence, II., p. 70: “Legal sovereignty is divisible, i.e., different branches of it may be concurrently vested in different persons or bodies, co-ordinate altogether, or co-ordinate partially only, though acting in different spheres.” For a statement of the contrary opinion see Brown, Austinian Theory of Law, p. 174.

515. Leviathan, ch. 20. Eng. Works, III. 194.

516. I. 263.

517. The distinction between de jure or legal and de facto or practical sovereignty—sovereign power in law and sovereign power in fact—is admirably expressed and analysed in Bryce’s Studies in History and Jurisprudence II., pp. 49–73.

518. Fragment on Government, ch. 4. sects. 35, 36.

519. We have already seen that the state may and does owe legal duties to its subjects, but that these duties are necessarily imperfect and unenforceable. Supra, § 79.

520. For authorities, see § 57.

521. As to the possibility of legal limitations of sovereign power, see Jellinek, Das Recht des modernen Staates, I. pp. 432–441; Pollock, Jurisprudence, pp. 270–273; Sidgwick, Elements of Politics, pp. 23–29; 623–638; Bryce, Studies in History and Jurisprudence, II. 71. “Legal sovereignty,” says Dr. Bryce, “may be limited, i.e. the law of any given state may not have allotted to any one person or body, or to all the persons or bodies taken together, who enjoys or enjoy supreme legislative or executive power, the right to legislate or to issue special orders on every subject whatever.” Brown, Austinian Theory of Law, pp. 158–164. “The Austinian position,” says Professor Brown, “that a supreme legislature is incapable of legal limitation, is a position which does not rest, as Austin supposes, upon logical necessities, but upon the humbler ground of expediency.”

522. No small part of this branch of the law of status, however, may be conveniently dealt with in connexion with various departments of the law of property and obligations. It may be best, for example, to discuss the contractual capacity of different classes of persons in the law of contracts, instead of in the law of the personal status of these persons.

523. Blackstone, however, is sufficiently scrupulous in respect of logical arrangement to include them in this department of the law.